Is a shield law on the horizon?

Monday

Members of Congress come to media's defense, but what about passing the shield law?

Suddenly, freedom of the press is very, very popular.

In the wake of revelations that the Justice Department had subpoenaed the phone records of Associated Press reporters, several members of Congress were quick to share their outrage.

"The First Amendment is first for a reason," said Michael Steel, spokesman for House Speaker John Boehner. "If the Obama administration is going after reporters' phone records, they better have a damned good explanation."

Actually, the First Amendment is first because two other amendments got lopped off in the ratification process, but the sentiment remains.

Rep. Bob Goodlatte, R-Va., said any infringement on freedom of the press was "very concerning," and Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said he was "very troubled" by the incident. House Republican Whip Kevin McCarthy of California characterized the Justice Department's action as one of "numerous reports of misconduct by the administration," according to Fox News.

Overreaching shortcut

The Justice Department has earned the abuse. In its zeal to track down a government leaker, it ignored its own guidelines and subpoenaed telephone companies for records of 20 lines that had been used by about 100 journalists. Rather than reach out to the AP with a focused and limited request for information, the Justice Department took a clumsy and overreaching shortcut.

We're left to wonder whether this has been standard operating procedure for the Obama administration. In 2009, the government used State Department visitor records to establish a nexus between a suspected leaker and a Fox News reporter, and obtained a search warrant for the journalist's private email account, according to The Washington Post.

Some of the outrage is political posturing, but the rhetoric is heartening. The first generation of Americans insisted on freedom of the press to keep an eye on people in power. America's news media might not be very popular these days, but there's no denying the value of their watchdog role. If government has the power to track news gathering, democracy is undermined.

Maybe there's an upside to all that congressional venting. There's a chance the controversy could reignite support for a long-dormant shield law proposal. Surprisingly, President Obama raised this possibility, calling for legislation and offering what Daily Beast David Freedlander characterized as "an ‘I'm sorry' card for the media."

A shield law - which typically would provide some protection for confidential sources and create a legal threshold to be met before government could obtain journalistic information - wouldn't necessarily keep the government's hands off news media phone records, but it likely would involve judicial review and an opportunity for a news organization to challenge a subpoena. Forty states have enacted shield laws, according to the Reporters Committee for Freedom of the Press.

The president has had a mixed record on shield laws, according to Gregg Leslie, legal defense director for the Reporters Committee.

"Obama the senator was a supporter," Leslie said. "Obama the president was looking at this from a national security angle and seeing this as a real problem."

Press protections stall

The White House insisted on provisions in the proposed federal shield law that would give government greater latitude involving matters of national security, which many journalists saw as watering down press protections. Still, the modified shield law came very close to passage in 2010 before controversy over Julian Assange and WikiLeaks blew it out of the water. Congress wasn't going to support a law that might have provided cover for the notorious Assange. In the end, the shield law was shelved because the shifting news media landscape left too many questions. Is a blogger a journalist? If someone releases data that are used by news organizations, is he a journalist? Do you have to be paid to be considered a journalist under the shield law?

"In Internet years, four years is quite a long time," Leslie noted, saying the public has a better understanding of news media in a digital world. He said the odds of getting a shield law passed now are "actually pretty good."

I hope he's right. It's much clearer today that journalism can come in an unprecedented array of packages. A new shield law has to protect the function of journalism regardless of medium or business model.

It's rare for members of Congress to convey this much positive passion about a free press. It's time to put that to good use.

This column appeared May 21 in USA Today.

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